AD-A22 7 253

Reid Vapor Pressure Regulation of Gasoline 1987-1990

By

Roger Alan Butters

A.B. June 1972 Bowdoin College

J.D. June 1977 The Dickinson School of Law

A Thesis submitted to

The Faculty of

The National Law Center

of The George Washington University

in partial satisfaction of the requirementsfor the degree of Master of Laws

DTICSeptember 30, 1990 ELECTE

Thesis directed by

Arnold Winfred Reitze Jr.Professor of Law

DISIMMT1ON STRTEZ4NT A

Approved for public a eHau ,Di-bhu _on un ltd.

I-: e"

Cor t ert

I. Abstract ............ ...................... 1

II. Nonmethane Hydrocarbons as a Contributor to Ozone 2

III. Gasoline Evaporative Emissions .. .......... 10

A. Scope of the Problem .... ............. 10B. Gasoline Marketing and Evaporative Emissions 12

[1] Gasoline Evaporative Emissions Controls 12[21 How Refiners Adjust Volatility ..... 17[3] The Role of High Volatility Compounds in

Gasoline ..................... ..... 21[41 Reid Vapor Pressure Sampling and Testing 28

IV. The Market Structure and RVP Regulation ...... . 32

V. industrial Self-Reguiation .... ............. 36

VI. State Fuel Content Regulation .... ........ 39

A. Federal Preemption ....... ................ 39B. The California Exception ... ........... 41C. State RVP Regulation Outside California .... 44D. Preemption Litigation Prior to 1988 ...... . 51

VII. Federal Regulation ..... ................ 53

A. The Beginnings of Federal Regulation ..... 53B. The Attraction of RVP Regulation ....... 60C. EPA's Phase I Volatility Proposal of 1987 . . 62D. The Phase I Program is Adopted . ........ 67E. EPA's Alcohol Problem ............. ..... 74F. Enforcement ...... ................. 78G. The Record for 1989 .... .............. 87

VIII. The Advent of State Air Quality RVP Regulation OutsideCalifornia ........ ................... 90

A. NESCAUM Agrees to Regulate .. .......... 90B. The New York State Litigation .. ......... . 101

[1] The Preemption Issue .. .......... 104[21 Interstate Commerce Issues .. ...... 108r[3] The District Court Rules on Motions . . 114[41 Settlement ...... ............. 117

C. 'ESCAUM SIP Revisions .... . . ........... 118 El[11 Massachusetts .... .............. 1181[2] Rhode island .... .............. 129[31 Connecticut ..... ............... 130[4] EPA .pprovvs '.he Connecticut and Rhode

STATEMENT "A" per Major Roger Betters IAvalability CodesUS Army Toxic and Hazardous Materials Avai eazid/or

Agency/CETHA-CO, Aberdeen Proving Ground, - Diet Speola "MID 21010-5401

Ds Seol

TELECON 10/2/90 VGI 411 11

Island Plans .... ............. 132[5] New Jersey ..... ............... 136[6] New York ...... ................ 141[71 Maine ....... .................. 146[81 The Other NESCAUM States .. ....... 149

D. Pennsylvania Tries to Follow NESCAUM ..... 151E. SIP Revision in Maryland ... ........... 156F. Delaware ........ ................. 158G. Another Distribution Choke Point? . . . . . . . . . 158H. Northern Illinois ..... ............... 159I. Dallas/Fort Worth Texas .... ............ 162

IX. EPA Adopts its Phase II Regulation ......... . 165

A. EPA Abandons the ASTM Approach .. ........ 165B. Preemption of the California Standard ..... . 172C. Costs, Benefits ...... ................ 173D. Future Developments ..... .............. 179

X. Conclusion ......... ..................... 181

APPENDIX I EPA's Ozone Nonattainment Areas . 185

APPENDIX II Composition of Typical Gasolines . 186

APPENDIX III Schedule of Seasonal and GeographicVolatility Classes ......... 187

APPENDIX IV EPA's Summer 1989 RVP Standards asProposed .. .......... 189

APPENDIX V Proposed EPA Standards StartingSummer 1992 . . . . . . 191

APPENDIX VI EPA's RVP Standards for Summer 1989*... ' ' * * * ' * ' * * 193

APPENDIX VII NESCAUM Memorandum ofUnderstanding ......... .. 195

APPENDIX VIII EPA's RVP Standards for Summer 1992et. seq .... ............ 196

APPENDIX IX Equivalent Emission RVPCalculations .. ......... 198

APPENDIX X Equivalent Emission AnalysisDesignations .. ......... 200

ii

I. Abstract

Although it is generally only a summertime problem, smog,

as represented by its criteria pollutant, ozone, is currently

the number one air pollution problem in the United States.

Major contributors to smog formation are the various Volatile

Organic Compounds (VOC's) which react with other chemicals in

the atmosphere to form the ozone and other harmful chemicals

known as smog. Gasoline is a major source of VOC's, not only

as it is burned in car engines; but as it evaporates.

Gasoline evaporates in storage tanks, as it is transferred

during loading and refueling operations, and in automobiles,

both while they are running and while parked in the driveway.

In 1987, the United States Environmental Protection

Agency began an almost unprecedented effort to reduce the

evaporative quality of commercial gasolines by mandating

reductions in its Reid Vapor Pressure (RVP)4 Reductions will

occur in two stages. the first began in 1989, and the second

will follow in 1992. T.

This paper analyzes the role of VOC's in smog formation

and the manner in which gasoline contributes evaporative

emissions to the inventory of VOC's in the atmosphere. The

adjustments in refining methods necessary to reduce gasoline

vapor pressures, their implications, and the problems posed

by the structure of the gasoline market are also discussed.

Then a summary of California and other state RVP programs

1

prior to EPA's 1987 rulemaking is followed by a description

and analysis of the federal Phase I program which took effect

in 1989. In Part VIII, state use of State Implementation Plan

revisions to reenter the RVP regulation field after Phase I's

federal preemption of their regulatory authority is discussed.

Then the substance of the just promulgated federal Phase II

program is analyzed, including its reliance upon a different

philosophical approach from its predecessor. The paper

concludes with an analysis of the projected costs and benefits

of Phase II, including the implications of the pending (as of

July 1990) Clean Air Act Amendments.

11. Nonmethane Hydrocarbons as a Contributor to Ozone

Photochemical oxidation occurs as a natural phenomenon.

During a walk through a forest, hikers may smell the fragrance

of the pines and other trees that are emitting organic vapors.

These organic vapors react with the oxygen and suspended water

molecules in the atmosphere to form a haze composed of the

water droplets and small particulate organic compounds.

Today, in much of the country natural haze is mere

background for the "smog" caused by man's dependence on the

INatural haze of this type led to the christening of asection of the southern Appalachians as the "SmokyMountains" long before the onset of the IndustrialRevolution. W. SPROULL, AIR POLLUTION AND ITS CONTROL 24-25 (2d ed. 1972).

2

internal combustion engine and fossil fuels. Coal, natural

gas, and all petroleum products are composed of various

molecular combinations of hydrogen and carbon atoms. Our

reliance on these fuels leads to the release of vast

quantities of hydrocarbon molecules into the air.2

Hydrocarbons may be divided between methane and

nonmethane hydrocarbons:

Methane is chemically inert, is naturally found in the

air, and has generally not been considered to be an air

pollutant.

In contrast, nonmethane hydrocarbons, [NMHC's] are

chemically reactive. Nonmethane hydrocarbons are also called

volatile organic compounds [VOC's]. No adverse health effect

has ever been demonstrated by human exposure to the levels of

reactive hydrocarbons measured in the atmosphere of even our

most polluted cities; 4 nonetheless, volatile organic compounds

have been a target of air pollution regulation because they

Dispersed natural sources still generate about 77.7% ofall ozone precursors. Williams, U.S. Refiners May FaceGasoline Supply Crunch in Driving Season, OIL & Gas J. 23, 24(June 5, 1989)(quoting Jerrold Levine, Assistant Director ofCorporate Studies AMOCO Oil, and U.S. EPA data).

3P. URONE, The Pollutants. in 6 AIR POLLUTION 23 (A.Stern editor 3d ed. 1986). Since methane is a "greenhouse"gas and may contribute to global warming, this historic lackof concern is changing.

4CONSERVATION FONDATION, A CITIZEN'S GUIDE TO CLEAN AIR 86(1972).

3

are essential building blocks in the formation of the various

photochemical oxidants found in smog.3

The photochemical oxidants within smog include ozone (0)

and various peroxyacetylnitrates (PAN). Their name,

"photochemical oxidants", describes their qualities. As the

suffix, "-chemical" implies, these pollutants are formed by

the chemical interaction and reaction of other "precursor"

pollutants. The primary smog precursor pollutants are the

various volatile organic compounds plus nitrogen dioxide (NO2)

and other oxides of nitrogen (NO,). VOC's react with each

other, with NO and NO, molecules, and with hydroxyl (OH)

radicals normally found in the atmosphere. These reactions

are spurred by sunlight ("photo"). Once formed, ozone and PAN

molecules are themselves extremely reactive oxidizing agents

("oxidants"). 6

Since ozone and the other components within smog are

created only as VOC and NO x molcoules encounter and then react

with each other under strong sunlight, there is a strong

temporal aspect to smog formation. The chemical reactions

leading to 03 and PAN formation are hot weather phenomena, and

even on the hottest summer day, the setting of the sun brings

the chemical reactions to a stop. Figure 1 demonstrates the

5P. URONE, supra note 3. at 23.

6A CITIZEN'S GUIDE TO CLEAN AIR. supra. note 4. at 85.

4

7seasonal nature of the ozone problem:

1986-88 Nationwide Ozone Exceedances(Excludes California and Houston)

Period Number/Exceedances PercentageJan 1-15 0 0.0Jan 16-31 2 .1Feb 1-15 1 .1Feb 16-28 1 .1Mar 1-15 5 .3Mar 16-31 6 .3Apr 1-15 2 .1Apr 16-30 35 1.9May 1-15 26 1.4May 16-31 154 8.2Jun 1-15 147 7.8Jun 16-30 352 18.7Jul 1-15 303 16.1Jul 16-31 379 20.1Aug 1-15 284 15.1Aug 16-31 121 6.4Sep 1-15 34 1.8Sep 16-30 15 .8Oct 1-15 6 .4Oct 16-31 8 .4Nov 1-15 0 0.0Nov 16-30 1 .1Dec 1-15 1 .1Dec 16-31 1 .1

1884 100.0

Figure 1

VOC's and NO, must be the primary targets of any program

to reduce smog. As highlighted in the current telcyision

advertising campaign of a major ethanol producer, carbon

monoxide (CO) also acts as a precursor to smog formation, but

the same sunny, hot weather conducive to smog formation

'U.S. ENVIRONMENTAL PROTECTION AGENCY, FINAL REGULATORYIMPACT ANALYSIS AND SUMMARY AND ANALYSIS OF COMMENTS: PHASEII GASOLINE VOLATILITY REGULATIONS Table 2-1 at p. 2-4 (May1990)thereinafter FRIA: PHASE II REGULATIONS].

5

actually discourages the production of CO. Carbon monoxide

is a product of incomplete combustion. In addition to a badly

tuned engine, its formation is fostered by high altitudes

and/or cold temperatures. The almost unprecedented heat waves

in the summer of 1988 generated record breaking smog episodes;

yet in the same year ambient levels of carbon monoxide

actually fell 3%.9

Smog weakens rubbera and fabrics, and is an irritant to

the eyes and lungs. Acute smog episodes can pose major health

risks to asthmatics and other persons with pre-existing

respiratory problems. It may lower resistance to disease in

healthy populations.to As it is transported by the wind, it

impacts areas far beyond the urban sprawl with which it is

usually associated. Smog is toxic to plants. It may cause

crop damage in excess of one Billion dollars per year, and

8CO levels have been reduced by a total of 28% since

1979. No Air Quality Improvement in 1988, EPA's Latest AirTrends Report Indicates. 20 Env't. Rep. (BNA) No. 50, at 1966(April 13, 1990)[quoting U.S. ENVIRONMENTAL PROTECTION AGENCY,NATIONAL AIR QUALITY AND EMISSIONS TRENDS REPORT 1988 (April5, 1990)1.

The recurrent smog problems in Los Angeles caused suchproblems, tire companies locally marketed specially formulatedcrack-resistant" tires. W. SPROULL, supra note 1, at 28.

lNotice of Proposed Rulemaking, Regulation of Fuels andFuel Additives: Volatility Regulations for Gasoline andAlcohol Blends Sold in 1989 and Later Calendar Years andControl of Air Pollution From New Motor Vehicles and NewMotor Vehicle Engines: Evaporative Emissions Regulationsfor 1990 and Later Model Year Gasoline-Fueled Light-DutyVehicles, Light-Duty Trucks, and Heavy-Duty Vehicles. 52Fed. Reg. 31,274, 31.275 (proposed August 19,1987)[hereinafter Proposed Rulemaking]; and see, ACITIZEN'S GUIDE TO CLEAN AIR, supra note 4, at 86.

6

imposes additional indirect costs as weakened plants demand

more water, fertilizer and cultivation.'t

Because of the problems caused by smog, it is a target

of Clean Air Act regulation. Rather than attempt to regulate

all the myriad of photo-reactive chemical components within

smog, one representative component, ozone, is designated as

a criteria pollutant. The primary ozone one hour standard

is .12 parts-per-million.12 Ozone exceedances have been the

most significant cause for listing Air Quality Control Regions

as "Nonattainment". Any area which has more than 3 days in

a three year period with ozone levels exceeding standards is

listed as Nonattainment. The hot summer in 1988 put dozens

of additional areas out-of-compliance. For the three year

period of 1986-88, a total of 101 metro areas were designated

as nonattainment for ozone.13

Oxides of nitrogen, in addition to contributing to ozone

and smog formation, also pose health risks of their own. The

Clean Air mandates their listing as a criteria pollutant.4

IlMore Stringent Long-Term Ozone Standard May be Proposedto Protect Crops, Official Says. 18 Env't. Rep. (BNA) No. 32,at 1805-06 (December 4, 1987).

1140 C.F.R. § 50.12 (1989).

"M. Woolcott, Volatility Regulation for Gasoline andAlcohol Blends Sold in Calendar Years 1992 and Beyond 1 (June6, 1990)(available in U.S. EPA Docket A-85-21).

i42 U.S.C. § 7409(c) (1989); 40 C.F.R. § 50.12 (1989).Atmospheric NO X reduces visibility and can irritate and damagelung tissue, making exposed persons and livestock susceptibleto bronchitis and other diseases; it can destroy or weakenplant tissue and reduce vegetative growth rates. Nitrate

7

VOC's do not qualify under the Clean Air Act for treatment as

criteria pollutants. ! Nonetheless, because of their

contribution to ozone and smog formation, VOC's are regulated

as "semi-criteria" pollutants.

Some progress has been made in reducing NO, and ozone

levels over the years. Over time, gains made tend to be

nullified by increased population, consumption, and vehicle

miles traveled. In the ten year period through 1987, NO, was

cut 12%, then reductions stopped. Ozone levels were cut 16%,

but then rose 5% in 1987.16 The unusually hot summer of 1988

increased peak ozone levels by 8% and NO 2 levels by 1%.17 The

number of ozone nonattainment areas increased to over 100.18

salts formed from NOI are corrosive to metals. A CITIZEN'SGUIDE TO CLEAN AIR, supra note 4, at 87.

15"Hydrocarbons" were listed as a criteria pollutant in1970. They were delisted after scientific studies provedtheir lack of health related impacts. A criteria pollutantmust "...reasonably be anticipated to endanger public healthor welfare." 42 U.S.C. § 7408(a)(1)(A) (1989).

.Urban Air Quality Continues to Improve, but Ozone, COLevels too High, EPA Reports, 19 Env't. Rep. (BNA) No. 47. at2518 (March 24, 1989).

t7No Air Quality Improvement in 1988, EPA's Latest Air

Trends Report Indi'ates, supra note 8. at 1966.

I&A map displaying the location of these nonattainmentareas is fouad at Appendix I. In 1987, 101.8 millionAmericans lived in counties exceeding at least one NAAQS.Listed in order of severity, exposures included:

Ozone 88.6 miliionCarbon monoxide 29.4 miiiionParticulates PV10 21.5 millionOxides of Nitrogen 7.5 millionLead 1.7 million

8

The chemical reaction of NO, and VOC molecules may occur

many miles downwind from the sources of their emissions. In

the mid-1980's. the Environmental Protection Agency tracked

the flow of a "plume" of smog as it moved from New York City.

By early morning the plume had reached southern New England;

by mid-day central New England. Cape Cod and Western

Massachusetts; by late afternoon the plume had reached

Northern New England states. 15 In 1988, Maine was detecting

ozone levels as high as 2.0 ppm at Isle au Haut, an island

portion of the Acadia National Park, located over twenty miles

due east of the mainland.20 A 1987 New York Department of

Environmental Conservation study concluded that New Jersey

could stop all VOC and NO x emissions for one day, and still

remain non-attainment for ozone (smog) due to transport of

smog and smog precursors into the state on the prevailing

southwest winds.21

Suiphr Dioxide 1.6 miijon.OFFICE OF AIR QUALITY, U.S. EPA, NATIONAL AIR QUALITY ANDEMISSIONS TREND REPORT 1987, at 3-5 (March 1989).

1 House Committee on Energy and Commerce, Subcommittee onHealth and Environment, Testimony of John Elston. AssistantDirector Air Quality Management and Surveillance, New JerseyDepartment of Environmental Protection on Behalf of NESCAUM,101st Cong. 1st Sess., at 2 (February 28, 1989).

20State Board Adopts Regulations to Reduce Gasoline

Volatility in Summer to Control Ozone, 19 Env't. Rep. (BNA)No. 16, at 705 (August 19, 1988).

91

'Testimony of John Elston, supra note 19. at 3.

9

111. Gasoline Evaporative Emissions

A. Scope of the Problem

In preparation for its announcement of Phase II Gasoline

Volatility Controls, EPA prepared this consolidated inventory

of VOC emissions in its 1987 Ozone Nonattainment Area3.

1987 Non-Northeast Nationwide Urban OzoneNonattainment Area VOC Emissions Inventory

Source Category VOC Emissions (1000 tons)Light Duty Gasoline Vehicies LDGV 3743.3Light Duty Gasoiine Trucks LIXT K2.6Heavy Duty Gasoline-Fueled Vehicles HIXV 215.ADiesel Powered Vehicles DSLV 93.7Area Sources 4417.7Point Sources 1183.4

Total 10575.8

Figure 2

A startling 46% of VOC emissions are linked to gasoline

powered vehicles.,2

In automobile engines, a spark is applied to a fine spray

of atomized gasoline mixed with air: the resulting combustion

driving the cylinders. (In diesel engines, cylinder-

compression heat ignites the fuel). Ideal. or

"stoichiometric" combustion requires mixing about 15 grams of

22Seventy non-Northeast Nonattainment areas were included,including 10 in California. The eight Northeastern states(New England plus New Jersey and New York) were excludedbecause most of them had already adopted an RVP programequivalent to EPA's Phase II program. The eight Northeasternstates fraction of United States gasoline consumption is about16%. FRIA: PHASE 11 REGULATIONS, supra note 7. at pp. 3-29.4-il (May 1990).

10

air with each gram of fuel burned. Complete combustion

produces Carbon dioxide (COI), water vapor (H20), and nitrogen

(NI) or oxides of nitrogen (NOx)23

The chemical composition of the fuel used has little

impact on the amount of NOI emitted. To reduce NO,, the engine

has to be "detuned" by lowering combustion temperature or

lowering the ratio of air to fuel. The incomplete combustion

which results adds carbon monoxide and unburned hydrocarbons,

including volatile organic compounds to the exhaust stream.

As air and heat are added back into the mixture. combustion

becomes more stoichiometric and these "Products of Incomplete

Combustion" (PIC's) are reduced. Unfortunately, "leaning" the

fuel in this fashion increases the production of NO.

In practice, VOC reduction is easier than NO, reduction,

and has been the preferred target in ozone reduction

strategies. It is easier to adjust the combustion and the

exhaust process to remove VOC's than it is to reduce NO.

Furthermore, unlike NO,, altering frel content cAn reduce VOC

emissions.

Combustion is not a prerequisite for gasoline to be an

air pollutant. To a varying degree, gasoline "...is a liquid

that wants to become a gas." VOC molecules in gasoline can

evaporate directly into the atmosphere. In 1970, about 11.4%

(4 million tons) of total hydrocarbon air pollution was

23As the combustion temperature is increased, N, isreplaced by NOX,

11

attributed to gasoline (and solvent) evaporative loss. An EPA

source described evaporation as only a "Miscellaneous" source

of hydrocarbons.24 As exhaust emissions controls have

improved, the relative significance of gasoline's evaporative

losses has increased.

B. Gasoline Marketing and Evaporative Emissions

The rate at which gasoline evaporates is a function of

site altitude and temperature, the chemical composition of

the gasoline, and the "emissions proof" qualities of the

equipment and methods used to store and transport it.

[11 Gasoline Evaporative Emissions Controls

Regulations limiting the vapor pressure of gasoline are

affected by limitations imposed by the manufacturing, storage,

and transportation processes used in the industry, including

some processes used to limit emissions. The petroleum

industry has been divided into three separate stages:

production, refining, and marketing. Since passage of the

Clean Air Act, extensive effort has been expended in reducing

evaporative emissions at each stage of the market process.25

The major sources of volatile organic compound

evaporative emissions at both the wellhead (production) and

24J. CAVENDER, D. KIRCHER. & A. HOFFMAN, NATIONWIDE AIRPOLLUTION EMISSION TRENDS 1940-1970 25 (1973).

25Hustvedt, McDonald, Markwordt & Shedd Process Emissionsand Their Control: Part 11, The Petroleum Industry, in 7 AIRPOLLUTION CONTROL 438-39 (A. Stern editor 3rd ed. 1986).

12

during the refining process are leaking seals and valves in

processing equipment. A "typical" refinery could emit 80 to

500 megagrams of VOC's per year via leaking gaskets, valves

and seals. Evaporative losses have been reduced through use

of "floating roof" storage tanks instead of fixed roof tanks;

through redesigned seals and valves; and through use of

pressure relief devices and controlled venting of vapors.

The marketing stage includes the transport of the

gasoline from the refiner to the retailer and then its

delivery to the customer in his automobile or truck.

Refineries deliver their products to regional storage

facilities, or bulk terminals. From there, distribution is

made to an intermediate distribution point, called a bulk

plant, or directly to the retailer (gas station).27

Each step in the marketing process requires loading fuel

from one tank into another. Each loading operation is a

potential source VOC emissions: filling the tank with fuel

displaces the air present in the tank. Gasoline molecules

mixed in that air can escape with it to pollute the

atmosphere. Emissions are reduced by "submerged loading"

Hid. at 447-52.

27id. at 453. Bulk terminals are often described as "tank

farms". Depending on location, terminals may receive gasolinevia pipeline, tankers or barges, and by train. Bulk plants

are distinguished from bulk terminals by their limited storagecapacity (under 50,000 gallons) and the limited means by whichthey receive gasoline (tank trucks and railroad cars). JackFaucett Associates, Petroleum Storage and Transit Times (FinalReport) 10 (September 26, 1986)(available in U.S. EPA DocketA-85-21 as Document 11-A-31).

13

which is used at all stages of the marketing industry. Fuel

is pumped in and out of storage tanks from near their bottom

instead of being "splash loaded" from their top.'& Submerged

loading reduces the surface turbulence of gasoline in the tank

which reduces the amount of gasoline vapor mixing in the air.

Even after submerged loading operations, the displaced

air will still contain some hydrocarbon molecules. The air

may be vented into a specia] carbon absorber vapor recovery

control system, or if recoverable quantities of hydrocarbons

are uneconomic, the vent can lead to a "thermal oxidizer" or

flare to be burned-off. With efficient combustion, thermal

oxidizers can reduce VOC emissions by 98%.29

The reduced turbulence, reduced vapor emissions benefit

of submerged loading has a "downside." Submerged loading

aggravates the tendency of different types of gasoline to

remain stratified within a storage tank. In the spring, when

the industry must reduce the RVP of the gasoline in its tanks

prior to the summer RVP enforcement dates, the lighter high

RVP winter grade gasoline tends to remain in a layer near the

top of the tanks as heavier, summer grade, low RVP gasoline

is added at the bottom.

2HGasoline is usually not introduced or withdrawn through

the very bottom of the tank. After it has been in operationfor an extended period, the layer(s) of gasoline in the tankwill float upon a layer of water and sediment which graduallycollects at the bottom of the tank.

22Hustvedt, McDonald, Markwordt & Shedd, supra note 25.

at 456.

14

To reduce vapor emissions, gasoline is removed as well

as added from the lower part of the storage tanks. Since few

storage tanks have any mixing capacity, "inventory" is removed

on something of a "Last-in, First-out" basis. Nor can an

operator simply pump out all the high RVP gasoline before

adding summer grade gasolines: Although most storage tanks

have floating roofs, five to ten feet from their bottom, the

roofs rest on stilts. Unless a tank needs extraordinary

maintenance, sufficient gasoline is kept in it to keep the

roof floating above the stilts. This avoids structural

stress, and eliminates both the emissions and fire hazard of

the residual vapors that would be left in the tank.30

An operator facing the possible sanctions of an RVP

regulation can only be assured of meeting the standard by

repeatedly adding and removing low RVP gasoline from his tanks

prior to the initial enforcement date of the regulation.31

As the disparity between the RVP of winter and summer grade

gasolines increases, so does the number of loads of low RVP

30American Petroleum Institute, Transportation and Storage

Times of Motor Gasoline 3-4 (1988)(available in U.S. EPADocket A-85-21).

3 Testimony of Joe T. McMillan on behalf of the AmericanPetroleum Institute, before the U.S. EPA hearings onVolatility Regulations for Gasoline and Refueling Emissions12-14 (October 28, 1987).

15

gasoline necessary to "blend down" the tanks' contentsi2 and

the time needed to bring storage tanks into compliance.

Operators may try to cut transition time and the number of

"turns" required by allowing their tanks of high RVP fuel to

be drawn down as far as possible, and then adding extra low

RVP fuel set as far below the government's summer standard as

practicable. This approach amplifies the risk of distribution

choke points and shortages as refiners first cut inventory (of

high RVP gasoline), and then rush to manufacture and transport

low RVP fuel throughout 1he distribution system.4

Bulk deliveries of gasoline to service stations have been

regulated by so called "Stage I" controls. The underground

storage tanks at gas stations are fixed roof. Emissions

during their refilling are controlled via vapor balance

systems. As the storage tanks are filled, the air and vapors

displaced as gasoline is added are vented into the delivery

31For example to blend down a half tank of 13.5 psi

gasoline down I psi to 12.5 psi could take X loads of 12.3gasoline. To blend down the same tank of 13.5 psi gasoline2 psi to 11.5 psi would require 2X loads of 11.3 gasoline.Transportation and Storage Times of Motor Gasoline, supra note30, at 5.

33Letter from J.N. Sullivan, Vice-President Chevron Corp.to Lee M. Thomas, Administrator U.S. EPA 2 (October 10, 1988).

34Statement of B.M. Harney, Mobil Oil Corporation, atpublic hearing of the New York State Department ofEnvironmental Conservation on Proposed Air Pollution ControlRegulation 6 NYCRR Subpart 225-3 "Fuel Composition and Use--Motor Fuel" 4 (March 2, 1989).

16

truck's storage tank.35

Refilling an automobile's tank also displaces vapors.

Gas stations can use vapor balance systems. or install

improved vacuum assisted systems, or use hybrid systems to

reduce these emissions up to 95%. As the vehicle's tank is

filled with gasoline, each of these "Stage II" systems vents

the displaced vapors from the vehicle's tank into the service

station's storage tank.36

[21 How Refiners Adjust Volatility

As it is pumped from the ground, crude oil could be

compared to a soup containing many different types of

molecular hydrocarbon chains. The three basic types of crude

oil are paraffin base, napthene base, and mixed base.

Paraffin base crude contains a relatively high percentage of

open chain hydrocarbons, which may be saturated (-alkanes),

or unsaturated (eg. olefins). Napthene based crude contains

a high percentage of cyclic/closed chain hydrocarbons. and

are highly aromatic. Mixed base crude contains.a mixture of

both open chain and closed chain hydrocarbons. Pennsylvania

crude is likely to be paraffin base: Texas and Louisiana oil

is napthene base; and Illinois produces mixed base crude.3

The type of crude oil supplied to the refinery may limit the

35Hustvedt. McDonald, Markwordt, & Shedd, supra note 25,

at 457-58.

3 id. at 457-59.

37H. HESKETt, UNDERST..DING &CONTROLLING AIR POLLUTION

136 (1972).

17

types and quantity of gasoline a refinery can produce.

At the refinery, crude oil is placed in a distillation

column and subjected to heat. Different hydrocarbon compounds

display differing characteristics; generally, the shorter

carbon chains contain more hydrogen and have lower boiling

points. 38 With fewer carbon atoms, these compounds are

relatively light, and burn (or evaporate) most easily.

Natural, "straight-run" gasoline compounds are among these

more volatile compounds, and generally comprise about 15% of

the crude oil "soup" . Simply distilling straight gasoline

from its crude petroleum base would be grossly insufficient

to meet the demands of the market. About 63% of the petroleum

market is for motor fuel; and nearly 75% of the motor fuel

market is for gasoline.40

To meet this demand, refineries must supplement their

distillation of straight gasoline by applying additional

processes to the various heavier and lighter hydrocarbon

fractions obtained through distillation. The naphtha fraction

is routed to a reformer, where it is upgraded into a high

octane substance called reformate. The longer, heavier, non-

gasoline carbon chains [called "residue"] are routed to vacuum

towers and catalytic "crackers" where the long carbon chains

are broken into shorter chains of six to eleven carbon

38H. HESKETH, AIR POLLUTION CONTROL 61 (1979).

3"id. at 71.

4 0id. at 70.

18

molecules in length. The resulting product is "cat gasoline".

a major component of commercial gasoline. Short chains under

6 carbon molecules in length can be combined to form gasoline

length molecules through a process calltd polymerization.

This fraction is called alkylate.41 When all these "process

streams" are mixed, a typical crude oil may have provided a

gasoline fraction as high as 56%.4!

A representative formula for gasoline is CSH18 ; but

refined gasoline is itself a "soup" of dozens of species of

hydrocarbon chains with boiling points ranging from about 100

to 400 degrees Fahrenheit. Gasoline hydrocarbons may be

divided between saturated (containing the maximum possible

number of hydrogen atoms) and unsaturated (all other)

hydrocarbons. The more unsaturated the hydrocarbon, the more

reactive it is, and the greater its potential role in smog

formation. Aromatic compoundsas their name implies, are

unsaturated, and leave a strong aroma as they react with

molecules in the atmosphere. Benzene. C.H' is a typical

aromatic compound. 43 Refineries may add hydrogen in order to

saturate the carbon molecules. The table at Appendix II

provides an example of the variety of compounds in commercial

41H. HESKETH, supra note 37. at 137-38: and Poten &Partners. Review of U.S. Northeast Gasoline Suppliers 2(1989).

41H. HESKETH. supra note 38. at 72-72.

3H. HESKETH. supra note 37, at 83-84.

19

gasoline; and it also demonstrates the great variation which

refining adjustments can make in the molecular composition of

gasoline refined from the same stock of crude petroleum.

The different components in the "soup" of gasoline

hydrocarbons have varying volatilities. The shorter, lighter

hydrocarbon chains are the most volatile and make up a

disproportionate share of the gasoline vapor. Historically,

the single most prevalent compound found in gasoline vapor has

been butane. Chemically, with only four carbon atoms, butane

is not actually "gasoline." Light gases, including propane

(C3), and butane (C4), are among the by-products produced

during the refining process. Butane is produced by as many

as seven of the different "process streams" which contribute

to commercial gasoline.44

Normally, gasoline refiners draw-off and remove as much

propane (and any lighter gases present) as possible. Until

the advent of federal volatility regulation in 1989. refiners

had little incentive to remove butane. Butane had little

market value of its own. For refiners, it had greater

economic value as a "filler" mixed with commercial gasoline

than it did sold separately.4 5

44Volatility Limit of Gasoline Lowered During SummerMonths Beginning in 1992, 21 Env't. Rep. (BNA) No. 6, at 311(June 8, 1990)(quoting J. Williams. Senior Refining Associate,American Petroleum Institute).

45Proposed Rulemaking. supra note 10. at 21.278.

20

131 The Role of High Volatility Compounds in Gasoline

One advocate of government imposed reduction in Reid

Vapor Pressure has claimed the oil companies like high

volatility gasoline because "...it is cheaper to make and you

have to buy gas more often [due to its high rate of

evaporationj." 4 Butane is cheaper than gasoline, but the

industry practice of leaving it mixed in gasoline was not just

a matter of diluting their product, or "watering the stock".

Butane has performance benefits that can make its blending

with commercial gasoline desirable to consumers.

Gasoline volatility may effect engine performance. For

cold weather starts, gasoline must be sufficiently volatile

to provide enough vapor in the cylinders to allow ignition.

In warm climates, or at high altitudes, a fuel whose

volatility is too high may vaporize within the fuel system

before reaching the cylinders, causing "vapor lock". For

years, refiners used adjustments in the butane fraction of

their gasoline as a ready means of seasonally adjusting fuel

AeState Board Adopts Regulations to Reduce Gasoline

Volatility in Summer to Control Ozone. 19 Env't. Rep. (BNA)No. 16, at 705 (August 19, 1988)(quoting Dean Marriot,Commissioner, Maine Department of Environmental Protection).

47A 4500 feet increase in altitude is equivalent to a+ 1.3 psi increase in Reid Vapor Pressure. A car using 10.1psi gasoline at 70OF in San Antonio (700 feet elevation) willhave performance equivalent to a car using 8.8 psi gasolineat 7001 in Denver (5200 feet elevation). U.S. ENVIRONMENTALPROTECTION AGENCY, DRAFT REGULATORY IMPACT ANALYSIS: CONTROLOF GASOLINE VOLATILITY AND EVAPORATIVE HYDROCARBON EMISSIONFROM NEW MOTOR VEHICLES (1989)(available in U.S. EPA DocketA-85-21).

21

volatility.

Butane has a Reid Vapor Pressure five to nine times

greater than the major components of commercial gasoline.

(Reid Vapor Pressure, or RVP. measures the tendency of a

liquid to evaporate at 1000F)." Just a small amount of butane

can turn otherwise involatile and thus unusable gasoline

components into a volatile mixture. Figure 3 illustrates the

effect of removing butane from common gasoline fractions.0

Component Market Quality [RVPI DebutanizedCat gasohine "-! psi 4.0 psiAlkylate i-10 psi 4.0 psi100 RON reformate l-10 psi 5.5 psi

Figure 3

Octane is a measure of a fuel's resistance to ignition

through compression. An engine "knocks" when compression of

the air/fuel mixture causes gasoline to ignite in a cylinder

prematurely, that is prior te thc firing of the cylinder's

spark plug. The higher a fuel's octane, the farther the

piston can move in its compression phase without igniting the

fuel, and the more work the piston will perform when the fuel

is ignited.

Since 1980, many factors have contributed to a consumer

48Reid vapor pressure is not true vapor pressure because

a small amount of the gasoline evaporates during thecollection procedure, and water vapor and air may be includedwith the sample. AMERICAN SOCIETY FOR TESTING AND MATERIALS,

STANDARD TEST METHOD FOR VAPOR PRESSURE OF PETROLEUM PRODUCTS

(REID METHOD) D 323-82, n.1 (1982).

4'Poten & Partners. supra note 41, at 2.

22

demand for higher octane fuels. After the oil shocks of the

1970's, consumer demand for large cars revived. Larger cars

can demand higher octane fuels.50 In many new car engines,

after 15,000-20,000 miles, carbon deposits accumulating in

the combustion chamber can boost an engine's demand for octane

by 4-5 numbers. About 40% of 1988 model cars (and 15% of the

total fleet) have knock sensors in their engines. As these

sensors adjust the engine for knock, the epnine's acceleration

and mileage may be cut.51 A natural consumer reaction to these

adjustments is fuel-switching to premium grades. Also

petroleum companies have aggressively advertised premium

grades of gasoline because of their higher profit margin.52

Since refiners were required to remove lead from

gasoline, they have been adding highly volatile components

such as butane to their gasoline as a means of maintaining

high octane levels in the fuel.53 This trend has been

accelerated by a steady increase in the average octane of the

5Onzelman, Reformulated Gasolines Will Challenge Product-Quality Maintenance. OIL & GAS J., April 9, 1990 at 43.

51Williams, U.S. Refiners May Face Gasoline Supply Crunchin Driving Season, OIL GAS J., June 5, 1989 at 23. 25.

52Unzelman, supra note 50.

53The reader is cautioned that high volatility componentsdo not always possess high octane: and some high octanecomponents have low volatilities (e.g. toluene has an RVP aslow as 1 psi and an octane of 104). U.S. Toluene PricesSkyrocket as Gasoline Blending Demand Rises. 9 INTERNATIONALPETROCHEMICAL REPORT No. 18. at 3 (May 2. 1990).

23

gasoline poolA combined with the increasing consumer demand

for high-octane premium grades of gasoline.

Refiners have routinely added extra butane to their

commercial gasoline mixture in order to raise its vapor

pressure (and volatility), especially during the winter

driving season. In recent years, so much additional butane

has been used as a gasoline additive, in addition to the

butane simply left in the gasoline process streams, refiners

were augmenting their own supplies with purchases of butane

from the Natural Gas Liquids [NGLI indu~try.i5

Customarily, refiners have reduced butane content

in warm weather to reduce fuel loss through evaporation,

nonetheless, the butane which - ained has still been a major

contributor to smop> ior example, a gasoline with a Reid

Vapor Pressure of 11.5 psi might have a 5% butane component.

With this RVP, as much as 1% or 2% of the gasoline in an

automobile's tank is expected to evaporate on a hot day. Most

of that evaporative loss will be from the butane component

mixed with the gasoline. In hot weather. some 20-40% of the

butane added to raise RVP may never reach the engine's

54In 1980, the average octane of the unleaded gasolinepool was 83, by 1989 it was 88.5. Unzelman. .upra note 50.at 44.

55Gasoline refiners relied upon NGI. producers and otheroutside sources for about 20% of their butane requirements.Proposed Rulemaking, supra note :0. at 31,296.

24

cylinders due to its prior evaporation.5

The cheapest way for a refiner to reduce gasoline Reid

Vapor Pressure is simply not to add extra butane. Reductions

below the 10.0/9.0 psi range require adjustments in a

refiner's equipment, processes and/or type of crude oil in

order to reduce or remove the butane produced by the

production of the gasoline itself. If the reductions in vapor

pressure are deep enough, pentanes or even heavier components

may also have to be removed.53

The law of diminishing returns can apply to RVP

reduction. Depending upon the method used, it may cost a

refiner 3.5 times as much money to reduce RVP from 8.0 psi to

5S7.0 psi, as it does to reduce it from 11.5 psi to 10.5 psi.

Reducing RVP from 11.5 to 10.5 psi may achieve 80% of the

evaporative VOC reduction accomplished by a reduction from

53Notice of Final Rulemaking, Volatility Regulations for

Gasoline and Alcohol Blends Sold in Calendar Years 1989 andBeyond, 54 Fed. Reg. 11.868. 11,882 (March 22,1989)[hereinafter Final Rulemaking-Phase I] Whatever its ReidVapor Pressure when it is dispensed at the service station,fuel evaporation is not a "steady state" process. As butanein the fuel evaporates, the RVP of the gasoline remaining inthe vehicle tank is reduced; and the rate of evaporation slowsuntil the tank is refilled. The proper modeling of this"weathering" process was a controversial aspect of both thePhase I and Phase II rulemaking. FRIA: PHASE II REGULATIONS.supra note 7, at p. 3-20.

"57Once the butane is gone, the volume of volatile

components requiring removal increases dramatically; e.g.."IFlour times as much pentane must be removed, compared tobutane, to reduce RVP one psi." Letter from L.D. Thomas.President, AMOCO Oil Co. to Lee Thomas. Administrator, U.S.EPA (September 28, 1988).

58Letter from J.N. Sullivan. supra :-ote 33. at 1.

25

11.5 to 9.0 psi; yet it may cost only 40% as much.

Proponents of the severest reductions in RVP argue

government imposition of a 9.0 psi standard merely returns

the oil industry to the same voluntary levels it used at the

start of the 1970's. Although the RVP levels might be the

same, the 9.0 psi gasoline is not. In 1970, lead additives

were the principal means of raising fuel octane. Butane

removed in 1990 may not be replaced with lead.0

In addition to butane, the percentage of gasoline

aromatic and/or olefinic hydrocarbons has been increased to

compensate for the octane lost as lead was removed. In the

decade from 1980 to 1989, the average aromatic component of

gasoline increased from 22% to 32.1% by volume.Et Butane is

a paraffin, and among the least reactive hydrocarbons found

in commercial gasoline. Although heavier than butane, and

less volatile, aromatics are among the most reactive. As they

evaporate, molecule for molecule, they contribute more to smog

formation than butane. " Some aromatics. such asbenzene, are

5DLetter from Richard Brescia, New York State PetroleumCouncil, to Mario Cuomo. Governor. New York State at 4 (July28. 1988).

t0See generally, 40 C.F.R. §§ 80.20-.26 (1989).

tlUnzc man, supra T:ote 50, at 44.

-H. HESKET11, supra. note 37. at 138: See ProposedRuiemaking, supra. note 10, at 31.278.

26

also suspected carcinogens. 3 Others, such as toluene and

xylene may be carcinogens. (Even if they are not, if

combustion is not complete, their molecules and radicals may

combine in the exhaust stream to formbenzene). 4 FortunaLely,

aromatics do not evaporate as readily as butane. A gasoline

composed of 35-40% aromatics by liquid volume. may emit vapors

whose aromatic fraction is only 1 to 4 %.E5

In its rulemaking EPA has treated all reactive compounds

equally, citing three reasons for doing so:

a During the severest. multi-day pollution episodes,

a slow reacting VOC will still ultimately contribute

to ozone problems, either in the city in which it

was emitted, or in downwind areas;

0 The modeling of the relative reactivity of various

VOC's is dependcnt on constructing too many

"N. Seidman & D. Ernst, [NESCAUM], A Gasoline VolatilityStrategy for the Northeast. presented at the APCAInternational Specialty Conference on the Scientific andTechnical Issues Facing Post-1987 Ozone Control Strategies.Hartford. Connecticut (November 16-19. 1987). One EPA studyestimated inhalation of gasoline vapors causes about 42additional cancer deaths each year. Thirty-four among regularcustome- at self service gas stations operating without vaporrp - ery systems; six among persons living near gas stations:

from populations living near bulk terminals: and one fromresidents living close to bulk plants; as reported in. GasVapors May Cause 43 Cancers Per Year. Marketing Study Says asEPA Weighs Options. 15 Envt. Rep. (BNA) No. 15, at 570(August 10, 1984).

E4Unzeiman, supra note 50, at 45.

tStatement of TJack Freeman. Sun Refining and Marketing

Co., before the New York State Department of EnvironmentalConservation Proposed Rulemaking Hearing: Limitations on theVolatility of Motor Fuel 4 (August 3. 1988).

27

assumptions for reliable rulemaking;

0 There are so many variables in the process of ozone

formation, such as weather, VOC to NO x ratios, and

the ratios of various hydrocarbons in different

gasolines; it is simply impractical to regulate on

a basis of relative reactivities. U

[4] Reid Vapor Pressure Sampling and Testing

The testing of gasoline vapor pressure poses a number of

challenges, especially as it is adopted in government

regulatory programs with enforceable sanctions. In

California, the one jurisdiction with a sustained history of

rigorous volatility regulation, failure to follow prescribed

testing methods has nullified enforcement actions. Care must

be exercised throughout the process of collecting, handling,

transporting and testing if accurate results are to be

obtained; and even then a regulatory program faces confounding

factors due to the nature of gasoline itself.6

Sampling from storage tanks poses he "confounding" issue

FRIA: PHASE I REGULATIONS, supra note 7, at pp. 3-34,

3-35.

Z7E.g. People v. Mobil Oil Corp., 143 Cal. App.3d 261. 192Cal. Rptr. 155 (1983) in which a complaint alleging 2,615refueling violations at Mobil service stations and seeking acivil penalty of Sl,307,000 was dismissed.

FiEthanol blends are tested with a distinct method. GasChromatography. EPA describes and analyzes issues related tosampling and testing of gasoline in its Proposed and FinalRules Regulating Gasoline Volatility, respectively: 52 Fed.Reg. 31,274, 31,318-40 (August 17. 1987); and 54 Fed. Reg.11,868, 11,875-77 (March 22, 1989).

28

of the layered, heterogeneous nature of the gasoline within

the tanks. Industry and government regulators use methods to

obtain a sample "representative" of the tank's entire

contents. In a "running sample." an uncorked can is lowered

from the top of the tank to the level of the tanks outlet (3

to 5 feet from the bottom of the tank, and above the layer

water and petroleum sediments). The container is then drawn

at a uniform rate vertically through the tank, in a manner

which leaves the can only 70-80% full as it breaks the

surface. An "all levels" sample is similar, except the cork

is in the container's opening as it is lowered into the tank.

and then is yanked out with a string just before the sampler

starts drawing the container to the surface at a uniform rate.

Since the lightest compounds in the container will begin

volatizing with their exposure to air, containers are capped

and sealed immediately. (The 20-30% airspace left in the can

allows the capture of most of these vapors if the container

is sealed promptly). The sealed containers are immediately

placed in ice chests and transported to the lab.

At the lab, the container is kept fully immersed in ice

(to insure all gasoline vapors return to liquid form) and then

a portion is transferred to an equally chilled "gasoline

chamber" which is filled to over flowing and sealed. A

chilled "air chamber" is then attached to the gasoline chamber

(within 10 seconds or the test is invalid). The gasoline is

then poured from the gasoline chamber into the air chamber.

29

shaken vigorously and immersed in a second bath, this time at

100 F. After at least five minutes. and for every two minutes

thereafter, the chambers are withdrawn, shaken vigorously, and

a vapor pressure reading is taken from a gauge fixed in the

air chamber. Their average becomes the Reid Vapor Pressure,

if all values recorded by the analyst are within a set range

of the mean. (This check on test validity is called,

"repeatability").

All sampling and test equipment has to be thoroughly

cleaned, rinsed with distilled water and heat dried prior to

each new test or sample, or else petroleum residues or water

can confound the test result. Similarly, all containers and

seals must be leak proof.

Since each exposure to air entails some loss of volatile

components, and sample collection and each subsequent transfer

involve some air exposure, each sample is only tested once.

Verification of non-complying results in an enforcement action

can only be obtained from a second sample. drawn at the same

time. from the same source. (This check on test validity is

called "reproduceability").

Reproduceability may pose the biggest problem for an

enforcement program. Even when the same individual draws two

successive running or all-levels samples, the contents of the

separate containers may vary as different ratios of VOC

compounds are collected in each pull through. They can also

vary as different amounts of VOC's escape prior to sealing the

30

sample can and during the transfers testing requires.

To reduce reprodu-eabiiity problems, sampling can be

conducted shortly after refilling operations at the storage

tank. Then, the layering effect has been reduced by the

turbulence from the pumping of new gasoline into the tank.

To minimize vaporization, collecting samples in the early

morning or other cool periods is advisable.

Selecting smaller targets is another method of reducing

reproduceability problems. Redirecting sampling to tank

trucks leaving bulk terminals and plants will give the

regulator a relatively homogenous, though much smaller sample.

(The contents are more homogeneous because it will have been

drawn from one layer of the tank and mixed by movement of the

truck). Retail level sampling should also produce more

reproducible samples. Retail samples are usually drawn by

filling the sample can from the pump, with nozzle placed flush

to the bottom of the can and a steady flow rate to provide

"submerged loading" and minimize splashing and vaporization.

Finally, one other method of avoiding reproduceability

challenges in an enforcement action is simply taking only one

sample..

The justice of any system is dependent on accurate chains

of custody and a reliable lab. In 1989 Massachusetts "tested"

t MASSACIIUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION.

DIVISION OF AIR QUALITY CONTROL. GASOLINE VOLATILITY REDUCTIONPROGRAM: REID VAPOR PRESSURE (RVP) PROGRAM REPORT. SUMMER1989--THE FIRST YEAR Parts IV and V (December1989)[hereinafter MASS. PROGRAM REPORT].

31

its contract laboratory by sending representatives to a retail

station, where they drew 20 consecutive samples from one pump.

Samples were then paired, and labeled as if they had been

drawn from ten different sources. All test results were

within the state's 9.0 psi Reid Vapor Pressure limit, but test

70results ranged from 5.9 to 8.8 psi.

IV. The Market Structure and RVP Regulation

Projections for United States gasoline consumption in

the year 2000 have ranged from 60 to 81 billion gallons.1

America's huge demand for gasoline has spawned an ubiquitous

marketing mechanism. In addition to the refineries which make

the gasoline, there are approximately:

o 1,500 bulk terminals;

o 15,000 bulk plants;

a 400.000 service stations.'!

The transit time of gasoline from the refiner or

importer, to the bulk plants and terminals, and then to the

retailers where it is sold to the end-user has tremendous

0 id. at 22-24.

71Notice of Availability of a Regulatory StrategiesAnalysis Document for Public Comment, Regulator" Strategiesfor the Gasoline Marketing Industry, 49 7ed. Reg. 31.706.31.710 (August 8. 1984).

"id. at 31.710.

32

relevance to RVP regulation. An EPA commissioned study found

the following "representative" transport times:

o Pipeline from Houston to New York: 14-25 days:

0 Barge from New Orleans to Fairmont, West Virginia:

151/! days;

o Tanker from Houston to Portland, Maine: 7+ days

o Truck delivery from "typical" bulk terminal to

"typical" retail service station: 1-24 hours.,

Storage time and the time necessary to clear stocks of

high RVP gasoline is obviously another factor relevant to

designing an enforcement strategy. As with other businesses.

profits in the gasoline distribution business are not made by

keeping large stocks of inventory on-hand. An average bulk

74plant keeps only a 3-4 day inventory of gasoline. During the

time of highest demand from May through September, storage

times at bulk terminals may average about 12 days; but, unlike

the bulk plants, average storage time at the individual bulk

terminals varies widely. Bulk terminal storage times depend

on the method uised to transport gasoline to the terminal.

Bulk terminals relying on pipelines may receive new shipments

every third or fourth day. Terminals using ocean tankers may

receive shipments only once a month and will have much longer

!Jack 7auce:t Associaes. supra note 27, at 4-6.

id. al 10.

33

average storage periods.'

Some of the greatest variation in storage times is found

at the retail level. A high volume urban gas station, or one

located on a major interstate highway may receive daily

shipments of gasoline. "Average" urban and suburban stations

may get shipments every two days or twice a week. Storage

time before sale for unleaded regular at a high volume station

might be two days. At an average suburban station, turnover

for the same product might take a week; for a rural station

it might take two weeks. A typical rural, low-volume station

may take 31/2 weeks to move its unleaded regular gasoline.

The erf'rcement level selected also impacts the cost and

intrus , ess of the regulatory program. A program which is

goirg to conduct a meaningful level of inspection and testing

if the market through the retail level obviously entails more

effort and expense for the government than one focused on

importers and refiners. Less obvious, but more costly is the

steep rise in compliance costs to industry (and ultimately

consumers) that marketwide enforcement imposes. The farther

"downstream" the government regulates, the earlier in the

spring the refiners and importers need to begin producing

(more expensive) low RVP gasoline, to insure all "downstream"

participants in the market are in compliance by the initial

enforcement date.

75id. at 8-9.

id. at 3.

34

Besides cost, downstream enforcement may have vehicle

performance ramifications. To insure all responsible parties

are able to meet the demands of the law, refiners may be

distributing low RVP gasoline long before the initial

enforcement date of any regulation. Low RVP gasoline may

remain in the market after the enforcement period ends. This

may place low RVP gasoline in consumer automobile tanks during

spring and autumn cold weather periods for which it is

unsuited.

Finally, programs mandating reduced RVP's exacerbates

our growing dependence on imported oil and gasoline. Cutting

RVP may reduce the nation's imports of butane, which range

from 17.4 to 21.5 million barrels each year. However, the

dollar value of these imports is trivial compared to the cost

of imported crude oil or refined gasoline.

Throughout the 1980's, American consumption of petroleum

increased an average of 2.5-3.0% each year. As consumption

increased, domestic production declined. Between 1988 and

1989, domestic production fell by 6.8%. Domestic exploratory

drilling has declined, in reaction to low prices and

environmental restrictions. In April 1990, there were only

932 operable rotary oil rigs in the United States. compared

to 3,970 in 1981. About 25% of United States oil consumption

is supplied from one area, the Prudhoe Bay in Alaska.

1982-34 statistics quotcd in. FRIA: PHASE IiREGULATIONS. supra note 7, at p. 4-27.

35

Production in the Prudhoe Bay fields is declining. The Arctic

National Wildlife Refuge offers the greatest likelihood of a

successful new strike, but it is off limits to exploration,

as are two other likely prospects, the coasts of California

and Florida.

As demand increased and our domestic production fell

during the 1980's, our imports increased. More than half the

increase in OPEC exports has been used to meet U.S. demand.

Currently, imported oil and oil products are supplying 50% of

our demand. In the first quarter of 1990, imports averaged

8.4 million barrels per day. (Compared to 6.3 million barrels

per day and 36% import dependence at the time of the 1973 Arab

Oil Embargo). By the end of the 1990's, imports could

constitute two-thirds or uiore of our petroleum supply.3

V. Industrial Self-Regulation

Long before the federal government was interested in air

pollution, the automotive and petroleum industries cooperated

with the American Society for Testing and Materials [ASTMI in

setting recommended gasoline volatility limits. Industry's

concern can be traced to the impact gasoline's volatility has

on vehicle performance. A consumer who could not start his

' Kaslow. J.S. Thirst for Oil Harder to Slakc, Christian

Science Monitor, May 9. 1990. at 7, col. 1.

36

car on cLld mornings or who suffered vapor lock on hot summer

days would likely be dissatisfied with both his car and his

brand of gasoline.

The ASTM set its standards using Reid Vapor Pressure,

[RVPI, which reflects the amount of fuel evaporation at 1000

Fahrenheit. This temperature is within the range found inside

a vehicle's gas tank during the summertime.

Since the 1950's, improvements in automotive design and

manufacture helped produce an upward trend in fuel volatility.

Manufacturers increasing use of fuel injected engines had

greatly reduced vapor lock from high RVP fuels. Although

highly volatile, butane is cheaper than gasoline. Refiners

had an economic incentive to take advantage of these more

capable engines by adding butane to their gasoline as a

filler. In 1970, when ASTM last set its limits for

recommended volatility, the RVP of an "average" summertime

gasoline was 9.0 psi. By 1987. summertime gasoline volatility

was averaging 10.5 psi. Testing of many "in-use vehicles

revealed the volatility of the gasoline in their tanks was

actually exceeding the RVP levels recommepded by the ASTM.'4

The ASTM classifications were:0

"Proposed ?::eMaking. supra noto 10. at 31.276-79.

H0id. .~~ 26(~u .1987N

37

ASTM Class Reid Vapor Pressure

A 9.0 psiB 10.0 psiC 11.5 psiD 13.5 psiE 15.0 psi

Figure 4

The higher the RVP number, the more volatile the

recommended gasoline. Each ASTM Class reflects the needs of

different geographic and climatic regions in North America.

The intended effect of setting five different standards is

uniform engine performance throughout the country. throughout

the yea'. Class A, (lowest volatility) gasoline is

recommended for the hottest areas, during their hottest

months. Conversely, Class E (highest volati'ity) gasoline is

recommended for use in the northern states during their winter

months. Most of the lower 48 United States are designated to

receive the moderate climate, Class C gasoline, through all

or most of the summer.ii Excluding California. which has used

a distinctive regulatory scheme since the 1970's. 8 the

relative demand for the three summer gasoline grades has

been:

aThe complete ASTM "Schedule of Seasonal and Geographic

Volatility Classes" is found at Appendix I1.

82The subject of Part VI. Section B. infra.

American Petroleum Institute. Tablr: "Percent ofSummertime Gasoline Demand", included with. J. Cabaniss,Memorandum to Record. Subject: Meeting with API RegardingGasoline Volatility (February 27, 1990)(available in U.S. EPA

38

Class C 72%Class B 26%

Class A 2%

In part, the monthly ASTM classifications for a given

state or area are made with an eye toward cold weather

startability and driveability. Design values for cold starts

are matched to "six-hour minimum temperatures". (A six-hour

minimum temperature is the lowest temperature which occurs for

six-hours in a 24-hour day). A state or region's ASTM

designation is in turn dependent upon its "tenth percentile

minimum temperature". For three days each month, the six-

hour minimum temperature will be below the design value of the

ASTM gasoline designated for that month.94

VI. State Fuel Content Regulation

A. Federal Preemption

Since 1970, Section 211 of the Clean Air Act has

authorized the Administrator of the Environmental Protection

Agency to test, register, control and prohibit any fuel or

Docket A-85-21 as Document IV-E-36).

iiComments of W.J. Koehl. Mobil Research and DevelopmentCorporation before the New York State Department ofEnvironmental Conservation Hearings on Proposed Air PollutionControl Regulation 6 NYCRR Subpart 225-3 "Fuei Composition andUse--Motor Fuel" 3 (August 3. 1988).

39

fuel additive used in motor vehicle engines. 5 Pursuant to

its statutory authority, in 1975 EPA listed five "components"

of gasoline subject to annual reporting and registration

requirements:

"(1) Hydrocarbon composition (aromatic content. olefincontent [and] saturate content)...;

"(2) Polynuclear organic material, sulfur content andtrace element content....

"(3) Reid Vapor Pressure;

"(4) Distillation temperatures (10% point and end

point);

"(5) Research octang number [RON] and motor octane

number [MON].''"

An explicit preemption provision is written into the act:

[N]o State (or political subdivision thereof) mayprescribe or attempt to enforce, for purposes of motorvehicle emission control, any control or prohibition

respecting use of a fuel additive in a motor vehicle ormotor vehicle engine-

(i) if the Administrator has found that no controlor prohibition...is necessary and has published hisfinding in the Federal Register, or(ii) if the Administrator has prescribed...a controlor prohibition applicable to such fuel or fueladditive, unless State prohibition or control isidentical to the prohAbition or control prescribedby the AdminisLrator.

8542 U.S.C. § 7545 (1989).

i,4 0 C.F.R. § 79.32(c) (1989); Requirements. 40 Fed. Reg.

52,009, 52,014 (1975) as amended by Revision of Regulation.41 Fed. Reg. 21.323, 21.324 (1976).

i42 U.S.C. § 7545(c)(4)(%) (1989).

40

Neither of these two general exceptions from federal

preemption were available to the states until EPA adopted its

Reid Vapor Pressure regulations in March, 1989:

0 The Environmental Protection Agency never published

or even proposed a finding that "no control" of Reid

Vapor Pressure is "necessary."

0 Apart from the registration requirements, until

1989, EPA's only overt restrictions on fuel content

were a series of 1970's restrictions on lead

additives. 88 The states could not make use of the

second preemption exception, since no federal RVP

restrictions existed which could be copied in

"identical" state statutes.

Since EPA did not place any limits on Reid Vapor Pressure

until 1989, one might think that refiners and importers faced

only the RVP registration requirement described above.

However, as EPA initiated its rulemaking in 1987, it could

review on-going Reid Vapor Pressure programs in about 20

states. While only California had an air quality oriented

program, the status of these state programs in 1D87 does merit

investigation.

B. The California Exception

Since 1970, California has occupied a unique niche in

the federai clean air regulatory scheme, In 1970, Congress

H40 C.F.R. §§ 80.20-.25 (1989).

41

preempted the regulation of automobile emissions, . except for

states which were regulating automotive emissions as of 30

March, 1966. 0 California was the only state which had

emissions standards in 1966, and has used its waiver to

continue to enforce a distinct set of vehicle emissions

standards since 1970.'I California has also been enforcing

its own air quality oriented gasoline vapor regulation since

the early 1970's.' In 1977, Congress retroactively gave

explicit recognition and authority to California to regulate

gasoline, despite the previous federal preemption of the

field:

Any State for which application of section 7543(a) ofthis title has at any time been waived under section7543(b) of this title may at any time prescribe andenforce, for the purpose of motor vehicle emissioncontrol, a contrQ1 or prohibition respecting any fuelor fuel additive..

A 1970 California Air Resources Board [CARBI action

al42 U.S.C. § 7 54 3(a) (1989).

'042 U.S.C. § 7543(b)() (1989).

}California's standards must remain at least as stringentas the federal standard, or the waiver is lost. 42 IU.S.C. §7543(b)(2) (1989). Since 1977, states other than Californiawhich are "Non-Attainment" for automotive related pollutantsare permitted to revise State Implementation Plans and adopt"California" standards for vehicles sold in their states a6a means of reducing those emissions. To date., no state hasdone so. 42 U.S.C. § 7507 (1989).

'2CAL. ADMIN. CODE tit. 13 § 2251. R. 70 (1989).

,342 U.S.C. § 7545(c)(4)(B) (1989).

42

.4

explicitly regulates "Reid Vapor Pressure for Gasoline".

The regulation imposes a 9.0 psi RVP for gasoline "sold or

supplied" as motor fuel in the thirteen California Air Basins

during the warmest months of the year. Starting and closing

dates vary with the climate. The period subject to the 9.0

psi limit currently varies in length from four months in the

"North Coast" and "Lake County" Air Basins to seven months in

the "South Coast" and "Southeast Desert" Air Basins. Non-

complying gasoline dispensed at retail outlets is exempt from

sanction, if it was delivered to the gas station more than 14

days prior to the start of the coverage period. 5

Although California's 9.0 psi summer RVP standard was a

unique program for many years; compliance did not pose undue

burdens for the petroleum marketing industry. California has

a large refining capacity within its own borders. If a

refinery lacked the capacity to produce, store and distribute

multiple RVP grades of gasoline, it could still do a very good

business providing the intrastate market with 9.0 psi

4CAL.. ADMIN. CODE tit. 13 § 2251. R. 70 (1989).

5The 9.0 psi RVP standard is applicable as follows:(a) April i-October 31: Soith Coast Air Basin. Soitheast Desert Air Basin:(b) May I----October 31: San Francisco Bay Area Air Basin. San Diego Air Basin. Sacramento Valley Air

Basin, San Joaquin Valily Air Basin, 'Jointain Cunties Air Dasin. Lake TahoeAir Basin:

(c) ,ay i--Septeaber 30: Creat Valley Air Basin;(d) June I---October 31: North Central Coast Air Basin. South Central Coast Air Basin:(e) Jine I-Septeaber 3D: North Coast Air Basin. lake County Air BaS:r.

California s -Air Basins" do not directly correspond to thesubdivisions used by the ASTM.

43

gasoline. About 11% of America's summer demand for gasoline

is generated within California.!

Even with most of its gasoline being refined in state,

California's summer RVP regulation program gives a good

example of the leadtime challenge posed by the spring shift

from high RVP to the regulated level. Given the necessity to

clear or blend down the stocks of high RVP gasoline in their

own tanks and pipelines, and at least those of their midstream

bulk plants and bulk terminals if they are to avoid penalties,

California refiners start production of 9.0 RVP gasoline four

or five weeks prior to the start of the summer enforcement

period. '

C. State RVP Regulation Outside California

None of the other forty-nine states are qualified for

the 42 U.S.C. § 7545(c)(4)(B) "California" exception from

federal preemption of fuel content regulation. Within its

existing language, no additional state could ever qualify for

that exemption. The waiver is limited to states exempted from

'American Petroleum Institute, Table: "Impact of GasolineRVP Reductions on the U.S. Refining industry" included with,j. Cabaniss. supra note 83.

"Massachusetts Department of Environmental QualityEngineering, Responses to Written and Oral Testimony Presentedat Public Hearing on the Proposed Amendments to Regulation 310CMR 7.00 and 7.02(12) for the Control of Air Pollution toReduce Volatile Organic Compound (VOC) Emissions by ReducingGasoline Reid Vapor Pressure 23 (March 1988). The March ASTMdesignations for California range from Class D to Class B.

44

federal vehicle emissions standards.' That exemption extends

only to states whose separate vehicle emissions standards were

already operative prior to March 30, 1966.' As previously

discussed, California was the only such state. Because of

that language, if in the future, a "Nonattainment" state

adopts California's vehicle emissions standards as part of a

State Implementation Plan revision, 100 that Nonattainment state

will not be authorized to adopt California's fuel standards

along with those California emission standards.

A review of the preemption language of 42 U.S.C.

§ 7345(c)(4)(A) explains how EPA could find a number of states

with ongoing Reid Vapor Pressure regulation prograws in 1987.

Federal preemption is limited to state restrictions adopted

or enforced "...for purposes of motor vehicle emission

control." t0 As an exercise of their police powers. the states

regulated RVP along with octane, labeling and other factors

linked to consumer protection. Some states had regulated the

general content of gasoline since the 1930's.

In 1987, twenty state legislatures and the District of

Columbia had not authorized RVP regulation.1 2 Apart from

842 U.S.C. § 7543(b) (1989).

342 U.S.C. § 7545(c)(4)(B) (1989).

t0042 U.S.C. § 7507 (1989).

10142 U.S.C. § 7 545(c)(4)((A) (1989).

t0'Those "states" included eight which had no gasolineinspection law: Alaska. the District of Columbia, Kentucky,Nebraska, Ohio, Oregon. Washington a nd West Virginia.

45

California, legislatures in twenty-nine states had extended

gasoline inspection authority to include Reid Vapor

Pressure. 103 Close examination proved state efforts not to be

as extensive as this statistic suggests. Similarly, except

in California, compliance with state RVP regulations should

not have been a particularly demanding chore for marketers of

gasoline.

As of 1986. the breadth of coverage was reduced by

factors peculiar to individual states. Colorado, Wyoming and

Michigan were in the process of developing regulatory

programs. 10 New Mexico's administrators had failed to used

existing statutory authority to actually adopt a regulatory

program. Idaho, Indiana, Rhode Island and South Carolina had

regulatory programs on the books, but were not enforcing them.

Mississippi had an active program with nine full time

inspectors, but was planning to stop enforcement activity in

Thirteen states had gasoline inspection laws, but noauthorization for RVP regulation: Connecticut. Kansas. Maine,

Massachusetts. Nevada. New Hampshire. New Jersey, New York.Oklahoma. Pennsylvania, Tennessee, Texas and Vermont. ESI

INTERNATIONAL INC.. SUMMARY OF STATE REGULATION OF REID VAPORPRESSURE IN THE FORTY-NINE NON-CALIFORNIA STATES, Part IV,(revised, July 25, 1986)[hereinafter SUMMARY OF STATE

REGULATIONS](available in U.S. EPA Docket A-85-21 as DocumentII-A-38).

103id. Parts 1:1 & :V: and R. Kenney, U.S. EPA, Memorandum

to File, Subject: State Volatility Controls (May 11,1987)(available in U.S. EPA Docket A-85-21 as Document I-A-

39).

0DColorado's RVP program became effective I July 1986:

Michigan's on 27 January 1987. though Michigan actually lackedany capability to test gasoline samples for RVP. Kenney,supra note 103.

46

July 1986.L05

Enforcement Activities of State RVP Programs 1986State Inspections Violations Stop OrdersAlabma 50-t00 1-2 1Arizona 100 0 N/AArkansas 1070 0 N/ADeilaare .58 0 s/AFlorida 1,000 40-50 3-4Georgia .2,250 -10 0Illinois none$ 0 N/AIowa 4000 11Louisiana 110 0 S/AMaryland 14,429 15-20 0Minnesota 500 3-4 0Mississippi (final year) 4,000 40-50 20Missouri 88 21Montana none$ 0 N/ANorth Carohina 6,635 0 iANorth Dakota 1,054 8 0South Dakota 90 0 S/AUtah 300 6 tiWisconsin 563 4 4

*Inspection after consaer complaint only

Figure 5

The Reid Vapor Pressure testing conducted by these states

was only a part of a gasoline consumers protection program.

Unlike the ozone-reduction air quality oriented RVP standards

eventually adopted by EPA. the state standards applied

throughout the calendar year. The state programs were broadly

focused and designed to insure retail customers received the

octane and other gasoline performance attributes they were

paying for. Some states, such as Alabama. Georgia and

Minnesota tested vapor pressure in only 10 to 20 percent of

105SUMMARY OF STATE REGULATIONS, supra note 102. Part II.

47

the gasoline samples taken during their inspections.0 6

As mentioned previously, the state regulatory programs

were not particularly onerous. As shown by Figure 5, state

testiiig programs seem to have detected a paucity of RVP

violators, even given the programs' generally small scale.

Probably the single most important factor leading to the high

compliance levels was the nearly uniform reliance by the

states on ASTM standards. Many of the oil industry's standard

supply and distribution contracts required compliance with the

ASTM specifications. By copying ASTM stanuards in their

regulations, these states in effect gained the advantage of

a huge private, contractual enforcement mechanism.101

Five of the non-California states did make minor, non-

burdensome deviations from the ASTM approach:

0 Throughout the year, Alabama's maximum RVP limits

(12 psi summer/14 psi winter), were set from 1/2 to

2 pounds per square inch higher than the industry

standard. 108

0 Arizona had two slightly different regulatory

schemes, "Area I" for the Prescott vicinity and

areas under 4500 feet in altitude; and a different

scheme for terrain above 4500 feet (Area II). "Area

'0 6id. at Part II.

toid. at pp. 11-3 through 11-6; and ASTM Schedule ofSeasonal and Geographical Volatility Classes, at Appendix I1.

108SUMMARY OF STATE REGULATIONS. supra note 102, at 11-3.

48

I" followed the ASTM standard exactly. In Area II

Arizona followed ASTM standards in the summer and

winter. In spring and summer, the state authorized

distribution of gasoline exceeding the ASTM standard

by amounts of from 1 to 2 pounds per square inch.

Since gasoline evaporates more easily with increases

in altitude, the Arizona Area II scheme may have

increased VOC emissions.I0 9

a In its last year of regulation, Mississippi

imposed no regulation in September and October. In

the remaining months the state matched ASTM limits,

except in August, which was the one month the ASTM

scheme required Class B (10.0 psi) gasoline to be

sold. Instead, Mississippi required only Class C

(11.5 psi) gasoline in August, which was the same

grade recommended by the ASTM and required by

Mississippi from April through July.110

0 Maryland's scheme differed from the norm. In most

of the state, in some months, its regulation was

actually slightly more restrictive than the ASTM

plan. In the ASTM schedule, March and November were

"transition" months in which either Class E (15

b0id. at pp. 11-3 through 11-6: and ASTM Schedule of

Seasonal and Geographical Volatility Classes, at Appendix III.

110SUMMARY OF STATE REGULATIONS. supra note 102. at pp.

11-3, 111-116.

49

psi), or Class D (13.5) psi gasoline could be sold.

Similarly in May, the ASTM provided a transition

from Spring, Class D (13.5 psi) gasoline, to Summer,

Class C (11.5 psi) gasoline. Maryland's standards

were set midway between the ASTM classes in those

months, and were thus more stringent than the oil

industry's voluntary standard. But in April, and

in June through October, the state RVP limits were

higher than the ASTM limits.[it Since the "ozone

season" stretches from May to September, this

emphasizes Maryland's vehicle performance

orientation, despite its setting of "more stringent"

limits.

0 Indiana also set standards which both raised and

lowered the ASTM recommended limits. But. again,

the state's Summer limits on Reid Vapor Pressure.

those most relevant to ozone control, were actually

higher than the industry limits.'2

These variances froin the ASTM approach actuaily

emphasize the prevailing concern in all the states was

insuring consumer satisfaction with vehicle performance and

not with limiting VOC emissions.

1111n addition, the three western counties had regulatorylimits exceeding the ASTM recommendations in eight months ofthe year: January, February, June, July, August, September,October. and December. id. at pp. 11-4. 111-94.

112id. at pp. 11-4, 111-73.

50

D. Preemption Litigation Prior to 1988

State Reid Vapor Pressure regulations w-'!r r' onerous,

and rarely generated litigation. Nonetheless, passage of the

Clean Air Act in 1970 may have altered the legal ;tatus of

state (and local) regulations.

In 1972, New York City cab companies challenged the

enforcement of a city ordinance requiring licensed cabs to

use low-lead gasoline and pre-1970 model cabs to be

retrofitted to enable them to use low-lead gasoline. The

trial judge held the local ordinance served the underlying

purpose of the Clean Air Act, (i.e. cleaner air), and

therefore the federal act's preemption provisions should be

narrowly construed. The judge then denied the plaintiffs'

claim of federal preemption, because they made no showing:

0 The EPA administrator had promulgated a federal

ru I e;

o Or. the EPA Administrator had made a finding that

no such rule was necessary.

The judge held, at least given the purely intrastate

impact of the city's hack licensing scheme. the absence of

federal action left the door open for local action.13

Even after EPA did adopt lead limits for gasoline, a 1973

decision by the same court allowed New York City to continue

enforcing its maximum lead content regulation. Tht District

1.3Allway Taxi. Inc. v. City of New York, 340 F. Supp.

1120 (S.D. N.Y. 1972), aff'd per curiam 468 F.2d 624 (2d Cir.1972).

51

Court reasoned EPA control of fuel and fuel additive served

two distinct, severable functions: protection of public health

and protection of emissions devices. The court ruled the EPA

lead regulations were designed solely to protect catalytic

converter emission devices; leaving health protection a field

open to more stringent local regulation.14

This decision was reversed in 1977. In Exxon Corp. v.

City of New York,1t 5 the Second Circuit did not directly

address the lower court's reasoning; but in the interim, since

the District Court decision, EPA had promulgated health based

lead-content regulations. Most significantly, the appellate

court not only overturned the city's lead restrictions, it

also overturned § 1403.2-13.12 of the New York City

Administrative Code, which set seasonal Reid Vapor Pressure

limits for gasoline." The appellate court noted the RVP

section of the ordinance was not identical to the federal

regulation. and was not promulgated as part of a State

Implementation Plan. Therefore it did not fit under any CAA

lExxon Corp. v. City of New York. 356 F. Supp. 660, 663

(S.D. N.Y. 1973).

1548 Y.2d 1082 (1977).

He The ordinance provided:

"Volatility limits on gasoiine.--Effective October 1, i171. no person shai cause or permit the ise,or, if intended for ise in the city of New York. the purchase, sale. offer for sale. storage ortransportation of gasoiine which exceeds the foilowing volatility limits:

(a) FDr the period October 1. throizh April 3D, not :'o exceed :2 ?.eid 'apor F'cssire.(b) For the period lay i throigh September 30. not to exceed ? e.d vapor pressire."

Exxon Corp. v. City of New York. 548 F.2d 1088. 1095 n.13(1977).

52

§ 211(c)(4) exception. I The Second Circuit relied upon the

record of the Conference Committee:

No State may prescribe or enforce controls orprohibitions respectin, any fuel or additive unless theyare identical to those prescribed by the FederalGovernment or unless a State implementation plan undersec. i10 includes provision for fuel or additive controland such plan is approved as being necesury forachievement of national air quality standards. a

The Second Circuit found preemption even though no

federal RVP regulation existed. Rulemaking for a federal Reid

Vapor Pressure standard would not even begin until 1987.

VII. Federal Regulation

A. The Beginnings of Federal Regulation

The federal government took almost twenty years to

address gasoline volatility's contribution to air pollution.

Even today there is no one. single federal standard: the

federal standards do not apply throughout the calendar year;

and although it is extensive, federal regulation is not truly

national in scope.

Section 211 of the Clean Air Act !19 grants authority to

11Exxon Corp. v. City of New York, 548 F. 2d 1088. 1096.(1977).

118Exxon Corp. v. City of New York. 548 F.2d 1088. 1094(1977)[quoting CONF. REP. No. 1783. 91st Cong.. 2d Sess.,reprinted in 3 U.S. CODE CONG. & ADMIN. NEWS 5356. 5374, 3385(1970)].

'42 U.S.C. § 7545 (1989).

53

the Administrator of EPA to regulate fuel and fuel additives.

The Administrator may control fuels and their additives which

create air pollution threatening public health, or which

impair the performance of emission control devices. 10 From

the time it was enacted. a primary focus in the enforcement

of this section was the deleading of gasoline. il' Little

attention was paid to regulating the other chemical properties

of gasoline.

In most urban areas, one-half or more of the VOC

emissions inventory is tied to automobile use and